New York Federal Court Holds Embedding Photos May Infringe Copyright

A New York federal court in Goldman v. Breitbart News has held that the common internet practice of “embedding,” also referred to as “in-linking” infringes the copyright of content that is embedded.

A very common practice for a website involves including a link to another site where content (articles, photographs) is stored, and then displayed on the website. The content it is never stored on the linking site but rather on the linked-to website.

In 2007, the Ninth Circuit Court of Appeals held in Perfect 10 v. Google that this practice does not infringe on the exclusive “display” right in the Copyright Act. But in February a federal court in New York rejected the Ninth Circuit’s view and held that embedding infringes on the right of display.

Plaintiff Justin Goldman, a photographer, took a photo of quarterback Tom Brady and posted it to his Snapchat page. The photo then spread around the internet, and was eventually posted to Twitter. The defendants – who include Breitbart News, Time, Gannett and the Boston Globe – wrote articles about Brady (and his involvement in the Boston Celtics recruiting Kevin Durant), and then embedded the Twitter post, displaying the photograph of Brady with the articles. Goldman sued for copyright infringement, asserting that this practice infringed on his exclusive right to “display” the photos.

This decision has the potential for a major impact on many websites and blogs, which often link to content on other sites. These sites now must consider whether they need a license to use linked-to content. A further thing to consider is whether sites that allow uploading need to amend their Terms of Use to permit linking of some kind.

The Copyright Act grants the owner of certain copyrighted works (literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work) the right to “display the copyrighted work publicly.” 17 USC 106(5). A photograph is protected by copyright and the owner has the exclusive right to “display” it “publicly.”

Embedding

Many websites, such as news websites and blogs, use a process known as embedding or “in-linking.” Underneath a webpage is code consisting of a series of instructions usually written by coders in Hypertext Markup Language (“HTML”). These instructions are served up by a computer connected to the internet when a user wishes to view a webpage. The users computer's browser connects with the server, at which point the HTML code previously written by the coder instructs the browser on how to arrange text and/or images, including photographs, videos on the webpage on the user's computer.

When, for example, a photograph on a web page needs to be included, the HTML code instructs the browser how and where to place the photograph. The HTML code could instruct the browser to retrieve the photograph from the webpage's own server or instead retrieve it from a third-party server. “Embedding” an image on a webpage is the act of a coder intentionally adding a specific “embed” code to an HTML instruction that incorporates an image, hosted on a third-party server, onto the webpage. Notwithstanding tht the image is actually hosted on a different server – the code instructs the user’s computer to obtain the image from that server and then display it on the page.

This is what happened in the Goldman case. Goldman’s photograph was stored on Twitter (after having been copied from Snapchat, then onto other social media sites and finally copied to Twitter). The defendant newssites used code to embed the photo – the HTML instructions pointed to the Twitter account that hosted the photo. It was then seamlessly displayed as part of the article about Tom Brady on their sites, although the sites never had a copy of the photos on their own servers.

Does embedding to a copyrighted photograph (or other content) infringe on the right to display the copyrighted work?

In 2007, the Ninth Circuit held not in Perfect 10 v. Google. It adopted what was dubbed the “server rule” – only when the image was hosted on the server of the same site were the image is displayed is there an infringement of the right to “display publicly.” Perfect 10 actually involved two different displays, one of which it held was infringing. Google downloaded thumbnails of photographs and displayed them on its website in response to a search. According to the Ninth Circuit those were “displayed” within the meaning of the Copyright Act. But the full images were never hosted by Google searches. Instead, Google provided a link, which then caused the image to be displayed when clicked by the user.

The Goldman court both disagreed with Perfect 10 and distinguished it. First, it cited a more recent Supreme Court case American Broadcasting Cos. Inv. v. Aereo Inc. (2014). Although that case dealt with a different right (to transmit copyrighted work), it still held that technical differences as to where things were stored did not matter. That persuaded the Goldman court to reject the “server rule” as too technical.

Furthermore, there were factual differences with the Perfect 10 case. There, the Google user had to affirmatively click on the link to cause it to be displayed. The user, then, was the immediate cause of the display, and Google was merely a facilitator it. (That might give rise to contributory infringement liability, but that is stricter, requiring specific knowledge that there is infringement.)

In Goldman, however, the display was automatically programmed into the article. A user who navigates to the article would see the entire article as designed by the newssites displayed – it would include text as written by their reporters, and a frame which included the photograph of Tom Brady through the embedded HTML link.

The district court accordingly entered partial summary judgment on the issue of infringement – the newssites had “displayed publicly” the copyrighted photograph through the linking.

The newssites may have other defenses in the case, so the case is far from over. But for now, the practice of embedding may be in peril.

Takeaways

Websites, including newssites, blogs and other sites, who use embedding must now consider whether the content (often photographs, but also possibly articles, videos and text) is protected by copyright, and if so, whether a license is needed. There are many on-line sites that license use of photographs for a modest fee, and sites that embed would do well to consider using them.

Another takeaway concerns Terms of Use. Many sites, like Twitter, may now consider amending their Terms of Use to require users who upload content to license their content to other users, perhaps on a non-exclusive basis.

But this, of course, would not solve the problem completely. In the Goldman case, Goldman uploaded his photo to Snapchat, it traveled over several social media sites until finally being uploaded to Twitter. Since he, the copyright owner, never uploaded it to Twitter, any Twitter Terms of Use would not apply to him.